The Fleeting Expletives Case

swearjar1.jpgIn preparation for a Supreme Court Preview event here at William & Mary, I’ve been reading the briefs in FCC v. Fox, the so-called “fleeting expletives” case. I am to serve as one of the “justices” at our simulated oral argument (the Supreme Court will hear argument on November 4), in which Erwin Chemerinsky and Tom Goldstein will be advocates. The case is presented to the Court as a run mine administrative law case. For those not familiar with the case, it involves review of the FCC’s decision in 2004 to sanction broadcast of even isolated or inadvertent (“fleeting”) expletives. The policy change seems to have been animated by fleeting utterances of variations of the words “fuck” and “shit” by Bono, Cher, Nicole Richie, and a host of “shock jocks.” At the risk of having myself recused, I want to briefly address what Fox refers to in its merits brief as “the 800 pound gorilla in the corner of the room” — whether the FCC’s indecency regime comports with the First Amendment.

In its “contextual” enforcement since the change of policy, the FCC has held that the use of expletives in Saving Private Ryan and on a morning news program were not indecent, while the use of expletives in a documentary on the blues was sanctionable. In any other context, of course, this sort of regime would raise serious and likely fatal First Amendment problems. That it does (or may) not in the broadcast context is owing to the Court’s decision in FCC v. Pacifica Foundation (1976), which narrowly permitted the FCC to move the “verbal shock treatment” of the Carlin “Filthy Words” monologue and other “indecent” expression into a “safe harbor” (10 p.m. to 6 a.m.) when children would be less likely to be listening and watching. If the First Amendment is the “800-pound gorilla,” Pacifica is the elephant in the room in the pending case. Its limited grant of authority to the FCC was largely premised on (1) the “uniquely pervasive presence” of broadcast media and (2) the fact that broadcast content was “uniquely accessible to children.” But today neither of these premises seems factually correct. Cable, Internet, and other media are as or likely more “pervasive” than broadcast, and all are accessible to children. In addition, technologies like the V-Chip would seem to offer less restrictive alternatives to the expansive indecency regime now used by the FCC. Finally, as Fox notes, several decisions subsequent to Pacifica have invalidated indecency standards very similar to the one enforced by the FCC. For these and other reasons, in the final portion of its brief Fox argues that the FCC’s present indecency regime violates the First Amendment.

I think there is some merit to Fox’s arguments, although the Court need not and likely will not go this far in the pending case should it decide to reject the FCC’s policy change. But is it time to go even further, and overrule Pacifica? I’ve always had some trouble accepting the Court’s rationale in Pacifica, including the notion that the broadcast of certain words is akin to an unavoidable “assault.” But at this point the decision seems like a glaring anachronism. I admit that in a world slathered with so many forms of indecency, there is an argument for preserving at least this one safe haven or zone of decency. And I have no sympathy for the networks if, as some suspect, their challenge is based on a perceived competitive disadvantage with cable in the race to the cultural bottom. But would broadcast really devolve into an expletive free-for-all if the FCC stopped policing for “indecent” words? (It didn’t in the decades leading up to the FCC’s policy change.) With so many communication/entertainment options and filtering technologies available, is occasionally indecent language on broadcast stations still a substantial concern? To how many people? (Nearly all of the 234 complaints in the Bono incident were mass-generated by a single group.) In the end, I’m just not sure that the FCC’s regime, including its most recent regulatory “swear jar” approach, is worth the candle. I wonder what others, particularly parents, think.

[Update: According to a recent survey, 39% would extend indecency restrictions currently applicable to cable and satellite television.]

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4 Responses

  1. Sam B. says:

    In my opinion as a parent, the “fleeting expletives” are actually the worst thing to allow on broadcast TV. In general, I have a sense of what to allow my daughters to watch on TV and when to change the channel. (I’m not perfect; there have been times when I or my wife was watching TV, she goes back to the bedroom to work on the computer and I go into the kitchen to prepare dinner when suddenly, out of the corner of my ear, I hear something that makes me rush back and turn of the TV or put in the Muppets as my daughter plays in the living room.)

    But in general I’m not dumb. Law & Order doesn’t play in my house while my girls are awake, and MTV and VH-1 long ago jumped the shark. But my guard is (or at least was) down in the Super Bowl and broadcast news shows. So when content I don’t want my daughters to see or hear slip into those, I’m offended. (Like the time a strip club or sex chatline or something advertised on a USA broadcast of Elf, of all things.) So the fleeting expletive is the worst of all worlds–the unexpected thing I was trying to avoid.

  2. Brian Garst says:

    Why should the opinions of parents matter with regard to understanding the First Amendment? Rights are not, and should not be, contingent upon popular support. Should we ask what PETA thinks about the Second Amendment? No, we shouldn’t, because it’s irrelevant.

    Do parents have something to say about the morality and practical implications of swear words on television? Absolutely. But their opinions say nothing about whether government has any Constitutional authority to enforce those subjective judgments. TV stations should care what parents think (with the competitive market providing the mechanism to communicate those preferences), not courts.

  3. tim zick says:

    I wasn’t suggesting that parents should determine constitutional outcomes. Since what we are really talking about here is harm to children, if any, from fleeting expletives, I thought parents’ views might be particularly relevant.

  4. C.J. Caporin says:

    Let’s cast aside the controversial First Amendment issue, for a very brief moment to get back to the real issue at hand: responsibility. FOX, like all other television broadcast companies, knows where the line is (has been) drawn and has an underlying responsibility to make sure viewers are kept free from those who would violate the intent of the original holding of Pacifica. The fact that the FCC had to go even further to regulate speaks of how networks have tried to push the envelope even further to dilute or redraw the boundaries. The fact is, they’ve been thwarted by the FCC and now look to hide behind the First Amendment to justify not wanting to police the conduct of producers, actors, musicians, etc. the networks seek to display. I guess if you give ’em an inch, they look to take a mile. NO MORE!